HKSAR v. MAN HING FUNG

DCCC 632/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 632 OF 2010

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Reasons for Sentence

1.  The Defendant has been convicted after trial of one count of indecent assault contrary to Section 122(1) of the Crimes Ordinance, Cap. 200. He has shown no remorse.

2.  The victim, referred to as ‘X’ in the particulars of offence, was aged 32 years at the time of the offence.  She was the younger sister of the Defendant’s wife. She had been married but was divorced from her husband in 2007, and her husband had been granted custody of their 2 children.  In October, 2009, she co-habited with another man, as a result of which she became pregnant in around January 2010.  For a number of reasons, things did not work out for her in the new relationship. As she had nowhere else to live, she moved in with her older sister, PW2 herein, and her husband, the Defendant, in February 2010.  She slept on the sofa-bed in the living room of her sister and the Defendant’s flat.  On the morning of 23^rd March, 2010, when she and the Defendant were alone in the flat, as her sister had gone to work and the children had gone to school, the Defendant indecently assaulted her whilst she was lying on the sofa-bed watching television.  The indecent assault was an extended one – he climbed onto the sofa-bed, grabbed both of X’s hands saying to her ‘I want it’. She resisted and managed to push him away and run into her niece’s room and climb onto the upper bunk of her niece’s bed, where she huddled in the corner – the Defendant followed her onto the bed and again grabbed her hands and demanded ‘Either you let me fuck you or you suck me’. She kept resisting and pushing him away – he slapped her face – she felt nauseous and he let her go to the toilet where she locked herself in and stayed for about 10 minutes – the Defendant kept  knocking and kicking the toilet door.   She finally came out and went back to the sofa-bed – the Defendant again approached and grabbed hold of her wrists, saying  ‘While you can give it to everyone, why can’t you give it to me’ and again ‘either you suck for me or you let me fuck you’ – he was straddling her, and undid the buttons of her pyjama top and undid the strap of her bra and squeezed her breasts, he took out his penis and masturbated himself and ejaculated over the left side of her neck. He had also pushed her head once, causing it to bump against the wall.  He used tissue to wipe himself as well as wipe the semen from her before returning to his room. He told her to tell her sister and said ‘let’s see if she believes you or me’.   X showered, packed her clothes and left and immediately called her sister and told her what had happened and a report was made to the police.  

3.  I viewed this to be a serious case of indecent assault.  X was pregnant at the material time – she was the Defendant’s sister-in-law and staying at his home – there is a breach of trust here.  This was an extended and nasty indecent assault upon the victim.

4.  There is no usual tariff for indent assault because the circumstances of each case can vary considerably. Section 122(1) of the Crimes Ordinance provides that a person guilty of indecent assault is liable upon conviction on indictment to 10 years’ imprisonment.

5.  I have carefully considered all that has been urged on me in mitigation on behalf of the Defendant. I have before me also the three reports I had called for – the Background, psychiatric and psychologist reports.  I have duly considered the contents of all of these.

6.  The Defendant is now aged 35 years.  He is married with 3 children aged 16, 15 and 12 years, all of whom are in school. He does have a criminal record, but these are for minor offences many years ago, and for the purpose of sentence, I shall disregard his previous convictions. His background is set out in great detail in the Background Report, and I do not intend to rehearse the contents again herein, save to say that he has a supportive wife and family.

7.  The psychiatric report discloses that he does not suffer from any formal psychiatric disorder. The psychologist report discloses that there is no significant cognitive impairment and existing information did not disclose deviant sexual interest. The clinical psychologist opined that his risk of sexual re-offending is present given his criminal history, chronic emotional distress and loneliness and recent marital conflicts.

8.  I did not call for a victim assessment psychological report on X. But clearly, this traumatic experience did affect her.  As a result of what had happened to her, she was so affected that she felt she could not continue with her pregnancy, and after being seen by several doctors, an abortion was recommended and carried out.

9.  There is little mitigation of weight before me. The Defendant has been convicted after trial.  He has shown no remorse whatsoever. When interviewed by the clinical psychologist, both the Defendant and his wife said that X was ‘sexually loose, had been a prostitute’ – the Defendant continues to cast slurs on the character of X.

10.  In my view there is a breach of trust by the Defendant – X was his sister-in-law and staying at his home – she was also pregnant. I view the indecent assault here to be a serious indecent assault over an extended period.

11.  The Defendant is sentenced to 2 years' imprisonment.